COURT OF APPEAL FOR ONTARIO

CITATION: Moore v. Getahun, 2015 ONCA 443

DATE: 20150617

DOCKET: C58338

Laskin, Sharpe and Simmons JJ.A.

BETWEEN

Blake Moore

Respondent

and

Dr. Tajedin Getahun, The Scarborough Hospital – General Division, Dr. John Doe and Jack Doe

Appellant

J. Thomas Curry and Jaan E. Lilles, for the appellant

Paul J. Pape and Joanna Nairn, for the respondent

Matthew Gourlay and Samuel Walker, for the intervener Criminal Lawyers’ Association

Richard Halpern and Brian Cameron, for the intervener Ontario Trial Lawyers Association

William D. Black, Jerome R. Morse and John J. Morris, for the intervener The Holland Group

John A. Olah and Stephen Libin, for the intervener Canadian Defence Lawyers Association

Courtney Raphael, for the intervener Canadian Institute of Chartered Business Valuators

Linda R. Rothstein and Jean-Claude Killey, for the intervener The Advocates’ Society

Heard: September 22, 23, 24, 26, 2014

On appeal from the judgment of Justice Janet M. Wilson of the Superior Court of Justice, dated January 14, 2014, with reasons reported at 2014 ONSC 237.

COSTS ENDORSEMENT

[1] We have now received written submissions from the parties with respect to the costs of this appeal. The respondent has submitted a bill of costs claiming costs at a partial indemnity rate inclusive of disbursements and taxes in the amount of $83,875.85. The appellant submits that as the appeal involved issues of public importance, no costs should be awarded.

[2] In our view, as the respondent was the successful party, he is entitled to his costs of the appeal. While the appeal did involve an issue of public importance, that is the case for many appeals to this court. It is only where an issue is truly novel or a matter of first impression that a departure is warranted from the normal rule that a successful party is entitled to partial indemnity for costs. The issue raised in this appeal was not of that character.

[3] Nor do we accept the appellant’s alternate submission that the respondent’s costs should be reduced to one third of the amount claimed to reflect the fact of both the appellant’s success on the point of public importance and the dismissal of the appeal on the narrower ground the trial judge’s error on the issue of public importance did not affect the outcome.

[4] While the respondent did raise certain issues in his factum relating to the issue of public importance, those issues were not pursued in oral argument. The respondent’s submissions were focused precisely on the point upon which he succeeded. We agree with the respondent that to reduce his costs to one third would amount to a distributive costs award that is not favoured by this court.

[5] As this appeal was argued over four days, albeit in conjunction with the related appeal in Westerhof v. Gee Estate, 2015 ONCA 206, and as the appellant has taken no issue with the quantum claimed by the respondent apart from the submission that we should make a distributive costs award, we award the respondent costs in the amount claimed, namely, $83,875.85, inclusive of disbursements and taxes.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”